People v. Whitmore , 30 Mich. App. 193 ( 1971 )

Per Curiam.

Defendant was found guilty of uttering and publishing¹ at the conclusion of a jury trial and was sentenced to from 5 to 14 years in prison. On appeal there are three assignments of error.

I

Defendant contends that the circuit court should have granted his motion for dismissal at the close of the people’s ease because of the prosecution’s failure to indorse the names of all the claimed res gestae witnesses present in the store at the time of the offense.

All known res gestae witnesses were made available at trial. The plaintiff does not deny that other people were in the store at the time of the incident, but their mere presence does not make them res gestae witnesses to the crime. Defendant does not assert that these other persons did actually witness the transaction in question, but only that they may have witnessed it. In all likelihood, the testimony of any other witness in the store would have been merely cumulative at most.

The statute, MCLA § 767.40 (Stat Ann 1970 Cum Supp § 28.980), does not extend to “witnesses” not known to the prosecuting attorney at the time of filing the information. People v. Fleisher (1948), 322 Mich 474. Nor is it error if the prosecutor fails to indorse on the information the name of a witness whose testimony would be merely cumulative. People v. Cooper (1950), 326 Mich 514. Defendant conld have, bnt failed to request names of the additional witnesses to be indorsed on the information. People v. Amos (1968), 10 Mich App 533. There is no reversible error as to issue I.

II

Defendant argues that the trial court committed reversible error by giving instructions that were incomplete and misleading to the jury. A review of the record indicates that the charge was adequate and fair and we determine that the defendant was not prejudiced by the charge. Under the facts in this case, since defendant made no objection at the time the instructions were given he must be said to have waived his right to object on appeal. GCR 1963, 516.2; People v. Floyd (1968), 15 Mich App 284, 288, 289.

Ill

Defendant’s final argument is that the trial court’s failure to provide defense counsel with a copy of the presentence investigation report was a violation of his constitutional right to effective counsel under the Sixth and Fourteenth Amendments of the United States Constitution and of article I, § 20 of the Michigan Constitution. This issue was dealt with in People v. Camak (1967), 5 Mich App 655, 661-663, where this Court held that the failure of defendant’s attorney to request permission to examine the report (as in the instant case) precludes defendant from raising this issue on appeal. See also People v. Charles Williams (1969), 19 Mich App 544.

Affirmed.

1 MOLA § 750.249 (Stat Ann 1962 Rev § 28.446).